The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL



PUBLIC OFFICES AND OFFICERS:

TOWNSHIPS:

Authority of township planning commission member to refuse compensation


A township planning commission member may not refuse to accept the compensation established by a township board for serving on its planning commission.


Opinion No. 6961

November 5, 1997


Honorable Bill Bobier
State Representative
The Capitol
Lansing, MI 48913


You have asked whether a township planning commission member may refuse to accept the compensation established by a township for serving on its planning commission. Information supplied with your request indicates that an appointed township planning commission member has declined to accept per diem payments established by a township board for its planning commission members.

Under the township planning act, 1959 PA 168, MCL 125.321 et seq; MSA 5.2963 (101) et seq (the "Act"), a township board is authorized to create a planning commission and to determine compensation for its members. Section 4(4) of the Act provides in relevant part as follows:

Members of the planning commission may be compensated for their services as provided by the township board. The planning commission may make and administer regulations relative to compensation for the travel of its members and employees when engaged in the performance of activities authorized by the township planning commission, including attendance at conferences and meetings.

It is generally held that a public official's acceptance of an amount less than the statutorily prescribed compensation is void as against public policy. 4 McQuillin, Municipal Corporations (3d ed, 1992 rev), � 12.191, pp 83-84 states:

At common law, acceptance by a public officer of an amount less than his or her salary does not represent a waiver, estoppel or accord and satisfaction. Accordingly, the courts have frequently held that an agreement by an officer to accept a less sum than the prescribed salary of an office is void, as against public policy, and the officer is not precluded from recovering, in an appropriate action brought for that purpose, the full amount of compensation due.

(footnotes omitted).

The above general rule is followed in Michigan. In Brown v Dep't of Military Affairs, 386 Mich 194; 191 NW2d 347 (1971), cert den 405 US 990, the court allowed plaintiff's claim for back pay, concluding that a public employee or officer cannot waive his or her entitled compensation. The court stated at pp 200-201:

Salaries of public officers which are established by law are not determined by contract or agreement between the parties. The public employer cannot pay more than the law allows. The public employee cannot accept less.

A waiver of statutory salary by a public officer is void as against public policy. Lee v. Macomb County (1939), 288 Mich 233; Kaminski v. Wayne County Board of Auditors (1938), 287 Mich 62; Ruell v. Alpena (1896), 108 Mich 290; McQuaid v. Oakland County Board of County Auditors (1946), 315 Mich 234; Miller v. Wayne County Board of Auditors (1879), 41 Mich 4. See, also, 70 ALR 972.

***

In summary, there can be no waiver of statutory compensation by a public employee or officer.

It is my opinion, therefore, that a township planning commission member may not refuse to accept the compensation established by a township for serving on its planning commission.

While a township planning commission member may not refuse to accept compensation provided by the township board, such compensation may subsequently be returned to the township. If a planning commission member, however, elects to return compensation earned for public service, he or she should consider the tax consequences of such action.



FRANK J. KELLEY
Attorney General